scholarly journals The Immunity of Heads of States of Nonparties in the Early Years of the ICC

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 172-176
Author(s):  
Dapo Akande
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Early Years ◽  
Senior Leaders ◽  
Customary International Law ◽  
International Crimes ◽  
Head Of State ◽  
Heads Of State

More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya's head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union,1 but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrest and their inviolability when abroad.2

Part II Substantive Law, 7 The Third Alternative of Surrender to a Competent International Criminal Tribunal or a Hybrid Tribunal and its Impediments

2018 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
International Law ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Customary International Law ◽  
The Third ◽  
Official Position ◽  
Head Of State ◽  
Substantive Law

The chapter elaborates the practical difficulties and principled opposition to the third alternative of surrender to a competent international criminal tribunal or hybrid tribunals, especially among several States in Africa on the grounds of discriminatory justice and/or the allegedly prevailing rule of customary international law of immunity of the head of State and some other senior State officials. In particular, while Article 27 of the 1998 Rome Statute of the International Criminal Court deems the official position of any person to be irrelevant, Article 98 of the same Statute sets conditions for cooperation with respect to waiver of immunity or consent for surrender of the person, which may not be forthcoming in practice. The author explains how the conflicting rules can be reconciled, if at all.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

scholarly journals THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

2019 ◽  
Vol 7 (1) ◽  
pp. 33-56
Author(s):  
Fareed Mohd Hassan ◽  
Noor Dzuhaidah Osman
Keyword(s):  
International Law ◽  
Rome Statute ◽  
The United States ◽  
Trial Chamber ◽  
Criminal Court ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

South African Law on Immunities

2019 ◽  
pp. 663-684
Author(s):  
Hennie Strydom
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
International Criminal ◽  
Criminal Court ◽  
African Union ◽  
Regional Organizations ◽  
International Treaty ◽  
Customary International Law ◽  
Head Of State

This chapter describes South Africa’s law governing the immunity of foreign states and officials, as well as of regional organizations. As the chapter explains, this law is made up of a combination of customary international law, international treaty law, English law, parliamentary legislation, and constitutional law. The chapter begins by describing the domestic status of international law in South Africa. It then describes in detail the 1981 Foreign States Immunities Act, including the various limitations on and exceptions to immunity set forth in the Act. After discussing the immunity of foreign states, it addresses head of state and diplomatic immunities and describes the controversial Bashir case from 2015 concerning a request from the International Criminal Court that South Africa arrest and surrender a sitting head of state. Finally, the chapter discusses the immunity of regional organizations and their staff, in particular the African Union and the South African Development Community.

scholarly journals Soldiers as Victims at the ECCC: Exploring the Concept of ‘Civilian’ in Crimes against Humanity

2017 ◽  
Vol 30 (3) ◽  
pp. 685-705 ◽  
Author(s):  
RACHEL KILLEAN ◽  
EITHNE DOWDS ◽  
AMANDA KRAMER
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Armed Forces ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
Broad Interpretation ◽  
Or Organization ◽  
Article 5

AbstractThe inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The call sought guidance on: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. We argue that customary international law justifies a finding that an attack on members of the armed forces can constitute crimes against humanity. In particular, the article focuses on the importance placed on the persecution element of crimes against humanity in the post-Second World War jurisprudence, and the broad interpretation of the term ‘civilian’. The article also examines the jurisprudence of contemporary international courts, finding that in some cases the courts have interpreted the term ‘civilian’ as incorporating hors de combat. However, the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Court (ICC) have moved towards a more restrictive interpretation of the term ‘civilian’, potentially excluding members of the armed forces. We argue that this move is regressive, and against the spirit in which the offence of crimes against humanity was created. The ECCC has an opportunity to counter this restrictive approach, thereby narrowing the protection gap which crimes against humanity were initially created to close.

scholarly journals A Prosecution too far? Reflections on the Accountability of Heads of State under International Criminal Law

2010 ◽  
Vol 41 (2) ◽  
pp. 179
Author(s):  
Steven Freeland
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Head Of State ◽  
Key Issues ◽  
Heads Of State

The recent issue by the International Criminal Court (ICC) of an arrest warrant against Omar Al Bashir, the President of Sudan, for alleged war crimes and crimes against humanity, represents the first time that the ICC has acted in such a way against an incumbent Head of State. It has renewed the debate about the potential international criminal responsibility of Heads of State and has led to strong opinions both for and against such actions. Yet, the prosecution of Heads of State is by no means a new phenomenon, and its continued use represents an important element in the internationalisation of justice that has gained renewed emphasis over the past two decades. This article offers some thoughts and reflections on several key issues associated with this debate, focusing particularly on the political, legal and historical dimensions that have combined to allow for the prosecution under international criminal law of any person, irrespective of their official capacity. It also examines the important role in this regard for the ICC, the world's first permanent international criminal tribunal, as well as the increasing range of prosecutions now taking place within national jurisdictions, as the period of impunity in relation to the commission of international crimes that had existed for several decades up to the 1990s has come to an end. 

International Criminal Court and Ad Hoc Tribunals

2008 ◽  
pp. 462-478
Author(s):  
Richard Goldstone
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Justice ◽  
Single Model ◽  
Customary International Law ◽  
International Criminal Tribunals

This article discusses contemporary international efforts to consolidate and codify significant portions of existing customary international law. It studies the ad hoc tribunals of the UN and pinpoints the successes and failures of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda. The ‘completion strategy’ of both international criminal tribunals is discussed. The article also covers the creation of ‘mixed’ courts and a single model for international criminal justice, namely the International Criminal Court.

The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes

2011 ◽  
Vol 105 (1) ◽  
pp. 1-49 ◽  
Author(s):  
Máximo Langer
Keyword(s):  
International Law ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Universal Jurisdiction ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
International Crimes ◽  
International Criminal Tribunals

Under universal jurisdiction, any state in the world may prosecute and try the core international crimes— crimes against humanity, genocide, torture, and war crimes—without any territorial, personal, or national-interest link to the crime in question whenit was committed.The jurisdictional claim is predicated on the atrocious nature of the crime and legally based on treaties or customary international law. Unlike the regime of international criminal tribunals created by the United Nations Security Council and the enforcement regime of the International Criminal Court (ICC), the regime of universal jurisdiction is completely decentralized.

scholarly journals Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa

2018 ◽  
Vol 18 (4) ◽  
pp. 577-622 ◽  
Author(s):  
Guénaël Mettraux ◽  
John Dugard ◽  
Max du Plessis
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Crimes ◽  
Judicial Practice ◽  
Novel Approach ◽  
Heads Of State ◽  
The Relationship

The relationship between international crimes and sovereign immunities has bedevilled judicial practice and legal scholarship and created an apparently irreconcilable tension between the two notions. Part of the difficulty in addressing this tension derives from the approach to resolving it. This paper proposes a novel approach, viewing the relationship specifically from the perspective of international criminal law and looking at the three core functions of immunities in that context. The authors conclude that customary international law excludes immunities as defence or bar to jurisdiction for core international crimes regardless of the nature of the jurisdiction concerned, the position of the accused, or the capacity in which the accused acted. When interpreted within that framework, the ICC Statute provides for clear limitations to the role of immunities in ICC proceedings and avoids the pitfalls that have thus far marred the ICC’s approach to the law of immunities.

Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

2016 ◽  
Vol 16 (4) ◽  
pp. 703-729 ◽  
Author(s):  
Michael Ramsden ◽  
Isaac Yeung
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
International Court

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

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